Impact of DACA Rescission on Employers & October 5th Deadline

On September 5, 2017, the Department of Homeland Security (DHS) announced that it was eliminating the DACA (Deferred Action for Childhood Arrivals) program. DACA allows certain children of illegal alien parents temporary relief to legally live and work in the U.S. This program was instituted in 2012, and, since then, hundreds of thousands of individuals have been legally working in the U.S. in DACA status with Employment Authorization Documents (EAD cards). Although the DACA program has been rescinded, DACA individuals can continue to work while their EAD cards are valid. All DACA EAD applications that were filed as of September 5th will be adjudicated. As of August 20, 2017, there were 178,195 DACA requests pending adjudication.

IMPORTANT DEADLINE: Anyone who has a DACA EAD card expiring by March 5, 2018 can file by October 5th to extend their EAD cards. Generally, DACA EAD cards are issued for 2-year periods.

This deadline is approaching quickly. So, employers should check their foreign national employee roster to see who is working pursuant to a DACA EAD card, and reach out to any employee whose EAD card is expiring by March 5th to start the renewal process right away. Employers should not ask employees directly who is here in DACA status, as that could lead to a discrimination, harassment and/or retaliation claim (among other claims). However, employers can and should check their I-9 records to see which employees have voluntarily disclosed that they are here in DACA EAD status. To determine which EAD cards are DACA EAD cards, generally, DACA EAD cards note on them a code of c33.

Once the EAD cards expire, DACA individuals will no longer have any status to live or work in the U.S. By August, 2019, when all current DACA EAD cards will expire, 798,942 DACA workers will have their EAD cards expire, potentially losing their status to live and work in the U.S.

Given the breadth of this program elimination and the impending expirations, employers should consider alternative work authorization options for those in DACA status. For example, if the DACA employee is from Canada or Mexico and has a 4-year college degree, s/he may be eligible for a TN work visa. Employers may want to consider filing for H-1B work visas in the H-1B lottery on April 1, 2018 for DACA workers with 4-year college degrees (or its equivalent). They may want to consider starting a greencard process for the DACA worker quickly in hopes of being able to secure continuous work authorization with an EAD card through the pending greencard process. DACA workers may be able to enroll in U.S. colleges and universities and maintain status here as an F-1 student, and possibly gain work authorization through the school.

Regarding international travel authorization for DACA individuals, the DHS will not adjudicate any further applications for Advance Parole (travel authorization). Although the DHS says it will continue to honor existing Advance Parole documents, it also cautions against international travel stating that officers have the discretion to exclude anyone arriving at the borders, even with an Advance Parole document.

Many organizations are actively urging the reinstatement of the DACA program, and there are many legislative and other efforts to accomplish that. However, in the meantime, it is important to heed the deadlines and proactive strategies above.

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